Mangala Bhimrao Ingle vs The Additional Commissioner, Amravati Division
- Court
- Supreme Court
REPORTABLE
IN THE SUPREME COURT OF INDIA
2026 INSC 1193
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S). OF 2026
@ SPECIAL LEAVE PETITION (C) NO. 30772 OF 2025
MANGALA BHIMRAO INGLE ...APPELLANT(S)
VERSUS
THE ADDITIONAL COMMISSIONER,
AMRAVATI DIVISION & ORS. …RESPONDENT(S)
J U D G M E N T
Table of Contents
I. Facts ....................................................................................................... 4
II. Decision of this Court in Javed in 2003 .................................................. 5
III. Two Decades since the ruling in Javed ................................................. 7
(a) Fall in the Total Fertility Rate (TFR) from 3.0 to 1.9…………….……..7
(b) India is now below replacement level fertility………………………… 10
(c) Lessons from abroad…………………………………………………… 13
IV. Role of Constitutional Courts in adapting to change ........................... 15
V. Precedents discussing Javed .............................................................. 27
(a) Javed followed by Rajbala v. State of Haryana ………………………27
Signature Not Verified
Digitally signed by
Jayant Kumar Arora
Date: 2026.11.04
14:29:57 IST
Reason:
(b) Discontentment with Javed and Rajbala : Sukanya Shantha v. Union
of India ...............................................................................................29
1
VI. Assessing the assumptions in Javed ……………………………………29
(a) Impact of Javed on political rights of representation……………….30
(b) Impact of Javed on rights of women………………………………….33
(c) Impact of Javed on reproductive autonomy………………………….35
VII. Conclusion…………………………………………………………………36
1. Leave granted.
2. The Appellant’s election as Sarpanch of Kakoda Gram Panchayat
was set aside on the ground that she was disqualified from contesting
panchayat elections because she had more than two children and it is in
violation of Section 14(1)(j-1) of the Maharashtra Village Panchayats Act,
1959.
3. We are of the strong opinion that laws that penalise having more
than two children have lost their relevance. The foundation of such laws,
i.e. the fear of overpopulation, has crumbled due to demographic
changes in the past few decades. We have explained how since 2003
1
when Javed v. State of Haryana (hereinafter referred to as “ Javed ”)
2
upheld such laws, India’s Total Fertility Rate (TFR) has fallen from 3.0
3
to 1.9. A TFR of 2.1, known as the replacement rate, would allow one
1
(2003) 8 SCC 369.
2
Ministry of Statistics and Programme Implementation, Women and Men in India 2006 (Central
Statistical Organisation 2006) 14, table 7 (source: Sample Registration System, Office of the Registrar
General, India).
3
Office of the Registrar General and Census Commissioner, India, Sample Registration System
Statistical Report 2024 (Ministry of Home Affairs, Government of India 2026) 85, para 3.19
< https://censusindia.gov.in/nada/index.php/catalog/47152 >.
2
generation to completely replace itself. So, even though India’s
population is not yet declining, the TFR falling below the replacement rate
will soon result in a demographic transition towards an older population
with a declining share of the working-age population. Therefore, laws
aimed at limiting population growth have now lost their significance. If we
fail to take note of such demographic changes, India will face serious
consequences. Adapting to change is important for achieving justice, as
failure to adapt produces injustice and is, in a sense, an abuse of power.
Thus, failure to use power to adapt to change is in its own way an abuse
of power. This has compelled us to stay the proceedings herein, and refer
the matter to a larger Bench for immediate re-visitation of the precedent
in Javed .
4. Apart from the above, equally concerning is the reasoning
employed in Javed to justify a manifestly arbitrary act. Allowing such laws
to stand excludes an entire class of citizens from political representation
on grounds bearing little rational connection to their capacity to hold
public office. Further, it compels an unconscionable choice between
bearing children and democratic participation, impinging on the right to
reproductive autonomy under Article 21.
3
I. Facts
5. It was found that the appellant gave birth to a third child in 2014 but
contested and got elected as Sarpanch of the Gram Panchayat in the
2022 elections. Compelled by the reality of the fact that the appellant did
in fact have a third child and did contest the election, the only argument
that her advocate could think of is to contend that there is no conclusive
proof of the third child as the birth certificate’s place of issue is allegedly
not valid.
6. More than two decades ago, similar laws disqualifying citizens from
participating in Panchayat and Municipal elections were upheld by this
4
Court in Javed. As we entertained the Special Leave Petition and issued
notice, our enquiry was not about the legality and validity of the judgment
of the High Court in its application of the governing laws or the precedents
on the subject. We were concerned about the relevance of these laws
when the very foundation for their articulation has changed, and therefore
the precedents that upheld those laws would not prevent us from
examining the present realities.
7. We have examined the circumstances in which the said laws, which
may have been valid at the time they were enacted, have now become
4
Supra Note 1.
4
unconstitutional, as the very foundation on which they were enacted has
changed.
II. Decision of this Court in Javed in 2003
8. In Javed, this Court after examining the vires of the Haryana
Panchayati Raj Act, 1994 upheld the disqualification of persons with more
than two living children from running or holding panchayat positions. The
validity of the provisions was considered in the context of violation of
fundamental rights, particularly Article 14, by applying the twin test
requiring the existence of intelligible differentia and its connection to the
object sought to be achieved and it was concluded that the impugned
provisions had not violated the equality clause. As regards the purpose
and object of the legislation is concerned, the court relied on the then
perception about population boom and its negative impact on the
economy.
9. We are compelled to revisit the ratio in Javed for the reason that
with the passage of time the very foundation of the judgment has
drastically changed. The assumptions undertaken by the Court in Javed
do not hold much ground anymore and have been proven to be false.
10. Interestingly, this Court in Javed , referred to the situation that
existed in China as of 2000 and the measures that it had undertaken to
5
5
control the population. Referring to certain research papers, this Court
accepted the view that socio-economic progress is hindered by
“population explosion”. Referring to the successive 5 year plans that
failed to alter the unabated rate of population growth from the level of 33
per thousand as of 1979, the Court observed:
“36. Every successive five-year plan has given prominence
to a population policy. In the first draft of the First Five-Year
Plan (1951-56) the Planning Commission recognized that
population policy was essential to planning and that family
planning was a step forward for improvement in health,
particularly that of mothers and children. The Second Five-
Year Plan (1956-61) emphasized the method of sterilization.
A Central Family Planning Board was also constituted in
1956 for the purpose. The Fourth Five-Year Plan (1969-74)
placed the family planning programme, "as one amongst
items of the highest national priority". The Seventh Five-
Year Plan (1985-86 to 1990-91) has underlined "the
importance of population control for the success of the plan
programme...". But, despite all such exhortations, "the fact
remains that the rate of population growth has not moved
one bit from the level of 33 per thousand reached in 1979.
And in many cases, even the reduced targets set since then
have not been realised". (Population Policy and the Law,
ibid., pp. 44-46.)
37. The above facts and excerpts highlight the problem of
population explosion as a national and global issue and
provide justification for priority in policy-oriented legislations,
wherever needed. ”
11. The National Population Policy, 2000 upon which reliance had been
placed to uphold the impugned legislative provisions of Haryana law, had
certain stated objectives to be achieved. Javed refers to it and observes:
“7. The immediate objective of the NPP 2000 is to address
the unmet needs for contraception, health care
5
Arcot Easwaran, ‘Population Challenge’ The Hindu (8 July 2003).
6
infrastructure, and health personnel, and to provide
integrated service delivery for basic reproductive and child
health care. The medium-term objective is to bring the TFR
to replacement levels by 2010, through vigorous
implementation of inter-sectoral operational strategies. The
long term objective is to achieve a stable population by
2045, at a level consistent with the requirements of
sustainable economic growth, social development, and
environmental protection.”
III. Two Decades since the ruling in Javed
12. Much has changed on the ground since the ruling in Javed . Not only
have the fears and assumptions which formed the basis for Javed been
adequately dispelled, but statistics also paint a grim picture. Population
statistics about the country predict noticeable changes.
(a) Fall in the Total Fertility Rate (TFR) from 3.0 to 1.9
13. One way to attempt to understand the status of the Indian
population would be by perusing the crude birth rate which has halved
over the decades, however, that does not paint a complete picture for
analysing population growth. For several years now, Total Fertility Rate
has been an important additional metric for tracking population change.
14. The standard international definition for Total Fertility Rate used in
the United Nations’ population estimates and by the World Health
Organization, reads:
“Average number of live births a hypothetical cohort of
women would have at the end of their reproductive period if
7
they were subject during their whole lives to the fertility rates
6
of a given period and if they were not subject to mortality.”
15. India’s two official sources use the same idea in their own words.
The Registrar General’s Sample Registration System (SRS) explains:
“TFR indicates the average number of children expected to
be born per woman during her entire span of reproductive
period assuming that the Age-Specific Fertility Rates, to
which she is exposed to, continue to be the same and that
7
there is no mortality.”
16. The National Family Health Survey (NFHS) defines it as “[t]he
average number of children a woman would have by the end of her
childbearing years if she bore children at the current age-specific fertility
8
rates”.
17. The NFHS, while calculating the TFR, takes into account the Age-
Specific Fertility Rate (ASFR). An ASFR is defined as the number of live
births in a specific age group of women per thousand female populations
of that age group. This allows statistics to paint a better picture of the
scenario as the data is adjusted for the number of women in particular
age groups in the population. This also allows for adjustments based on
the projected composition of the population. This has proved to be an
6
United Nations Department of Economic and Social Affairs, Population Division, ‘Total Fertility Rate’
(CSD Indicators of Sustainable Development: Methodology Sheets)
< https://www.un.org/esa/sustdev/natlinfo/indicators/methodology_sheets/demographics/total_fertility
_rate.pdf >.
7
Supra Note 3.
8
International Institute for Population Sciences (IIPS), National Family Health Survey (NFHS-6), 2023–
24: India and State/UT Fact Sheets (Mumbai: IIPS, 2026).
8
objectively better measure of population growth than simply the Crude
Birth Rate.
18. India’s own data show the difference between the two measures.
Between 1971 and 2024, the crude birth rate fell from 36.9 to 18.3 births
per 1,000 population, while the TFR fell from 5.2 to 1.9 children per
9
woman, as per the Sample Registration System (SRS) estimates The
birth rate halved; the TFR fell by almost two-thirds. The gap exists
because India’s population is still relatively young: a large share of the
population is in the childbearing ages, which keeps the number of births
(and so the crude birth rate) higher than the fertility of each woman alone
would produce. The TFR strips out this age-structure effect and
measures fertility behaviour directly.
19. It is not just the SRS estimates, the most recent National Family
Health Survey conducted by the Ministry of Health and Family Welfare,
NFHS-6, similarly estimates the TFR as of 2024 at about 2.0 children per
10
woman. The World Bank has placed India’s population growth at about
11
0.887% in 2025, compared with roughly 1.6% around 2005.
9
Supra Note 3 para 1.2.
10
Supra Note 8.
11
World Bank, ‘Population Growth (Annual %)-India’ (World Development Indicators, 2026).
9
(b) India is now below replacement level fertility
20. It is well known that a rate of 2.1 is regarded as the replacement
level, that is, the level at which one generation exactly replaces itself
12
without migration. Therefore, a fertility rate of 1.9, as recorded by the
SRS, means that India is below replacement level fertility. This
extraordinary phenomenon, and the reality of rapidly declining population
growth rates, has gone unnoticed because of the simple fact that we have
a large population.
21. India’s total population has neither begun to decline, nor is such a
13
decline expected immediately. The continued increase in absolute
numbers is, in substantial part, the result of demographic momentum: the
large number of people born during earlier decades of higher fertility are
now in their reproductive and working years, with the result that the
number of births may remain considerable even though each woman, on
14
average, is having fewer children. The social and economic conditions
accompanying this decline are equally undeniable. Contraceptive use
has increased, women’s education has improved, and marriage and first
15
childbirth are occurring later. The resultant decline in fertility is reflective
12
United Nations Department of Economic and Social Affairs, Population Division, Global Population
Growth and Sustainable Development (UN DESA/POP/2021/TR/NO 2, United Nations 2021) box 6.1.
13
United Nations Department of Economic and Social Affairs, Population Division, World Population
Prospects 2024: Summary of Results (UN DESA/POP/2024/TR/NO 9, United Nations 2024).
14
Ministry of Health and Family Welfare, Department of Health and Family Welfare, Annual Report
2023–24 (Government of India 2024) ch 1.
15
Ministry of Health and Family Welfare, Government of India, National Family Health Survey-6 (2023–
24).
10
of a wider and continuing transformation in family formation and
reproductive choices. The consequences of all these will become
increasingly pronounced as the age profile of the population changes.
The share of persons aged 60 years and above has already risen from
16
about 8.3% in 2014 to 9.7% in 2024, and Government projections place
17
that share at nearly 15% by 2036.
22. India’s falling fertility rate today necessarily means a smaller
proportion of younger persons tomorrow, as compared to today, and,
correspondingly, a larger ageing population. This is an issue which has
been of significant concern in the past few years. The Economic Survey
18
2025-26 also records this decline. Referring to projections contained in
the United Nations' World Population Prospects, the Economic Survey
observes that nearly 65 per cent of India's population will be in the 15–59
age group around 2030, stating that:
“India continues to benefit from a large working-age
population (in the age group 15-59), expected to exceed 98
crore in the next 10 years. According to the UN projections,
India’s demographic dividend is expected to peak around
2030, when nearly 65 per cent of the population will fall
within the 15-59 years group. At the same time, the
population is gradually ageing: the total fertility rate has
fallen below replacement levels and life expectancy has
steadily increased, raising the median age and signalling
16
Government of India, Ministry of Health & Family Welfare, Statistics Division, Health and Family
Welfare Statistics in India 2023 (2024).
17
Technical Group on Population Projections, National Commission on Population, Ministry of Health
and Family Welfare, Population Projections for India and States 2011–2036: Report of the Technical
Group on Population Projections (Government of India 2020); Ministry of Social Justice and
Empowerment, ‘Growth of Elderly Population’ (Press Information Bureau, 24 March 2026).
18
Government of India, Ministry of Finance, Economic Survey 2025–26 (2026) 468
<https://www.indiabudget.gov.in/economicsurvey/doc/echapter.pdf?src_trk=em67fc85eabd8609.319
16767497909476&utm_source>.
11
the onset of a demographic transition towards an older
population. While the expansion of the working-age
population presents opportunities, the concurrent ageing
trend introduces challenges for labour markets and social
support systems. This demographic shift also opens the
possibility of harnessing the longevity dividend.”
23. Empirical studies and United Nations demographic projections
demonstrate that sustained fertility decline, accompanied by increasing
life expectancy, may eventually result in a reduction in the relative size of
the working-age population and a corresponding increase in the
19
proportion of elderly persons. The United Nations Population Fund
projects that the proportion of elderly persons in India will nearly double
20
by 2050. These developments may adversely affect labour-force
participation, increase old-age dependency and place additional
pressures on economic growth and public finances.
24. It would be dangerously complacent to ignore the consequences of
India’s changing population growth rate merely because it already has a
large population—the stakes are too high. The need of the hour is to have
policies in tune with the present realities. We need to guard against
potentially irreversible decline in fertility and respond to the changing
demographic realities.
19
United Nations Department of Economic and Social Affairs (Supra Note 13); Guillaume Marois,
Ekaterina Zhelenkova and Balhasan Ali, ‘Labour Force Projections in India Until 2060 and Implications
for the Demographic Dividend’ (2022) 164 Social Indicators Research 477—497.
20
United Nations Population Fund and International Institute for Population Sciences, Caring for Our
Elders: Institutional Responses—India Ageing Report 2023 (UNFPA 2023). The report projects that
the population aged 60 and above will increase from 10.5% in 2022 to 20.8% in 2050. See also United
Nations Department of Economic and Social Affairs (Supra Note 13), discussing the limited duration
of the demographic dividend.
12
25. It seems that years of population control measures, coupled with
development efforts by the State, have borne fruit faster than what one
could have expected. Very soon, we may face an ageing population in
which a disproportionately large share of people are beyond working age.
Learnings from across the world warn us of the detrimental effects of this
increase in the ageing population. We must be aware of the
consequences of such a shift.
(c) Lessons from abroad
26. The rolling effect of a decelerating population growth is very hard to
reverse. China itself furnishes a particularly instructive example. When
this Court decided Javed in 2003, it referred to China as a successful
instance of stringent population control. The subsequent course of
events, however, tells a markedly different story. China abandoned its
one-child policy in 2015 and moved towards providing incentives for
21
having two children, acknowledging the need to improve its population
structure, augment labour supply and respond to an ageing population.
When that relaxation failed to produce the desired demographic
response, the policy was liberalised yet again in 2021 to permit three
children, accompanied by the removal of earlier disincentives and the
introduction of affirmative measures intended to encourage childbirth,
21
National Health and Family Planning Commission of the People’s Republic of China, ‘Universal Two-
Child Policy to Promote a Balanced Population Development’ (30 October 2015).
13
including support for childcare, education, maternity protection and family
welfare. More recently, those measures have been supplemented by
further incentives relating to maternity insurance, childcare, housing,
employment and other forms of support; yet the anticipated revival in
22
births has, by and large, not followed. The Chinese experience
therefore demonstrates the danger inherent in treating fertility reduction
as a policy achievement capable of being calibrated at will.
27. It is high time we recall Javed . We cannot ride into the future on a
horse that is dead. It is not the strongest of the species that survives, nor
23
the most intelligent, but the most responsive to change.
28. Beyond China, there have been other nations that are now bearing
the weight of a declining and ageing population. Japan, for instance, after
years of severe population decline continues to face high public debt and
high public expenditure on health and long-term care for its ageing
24
population, all of which adds to its fiscal and developmental challenges.
29. It is compelling to realise that the circumstances which informed the
decision in Javed have undergone a material transformation. At that time,
25
with a TFR of 3.0, the prevailing concern was one of “population
22
Standing Committee of the National People’s Congress, Decision on Amending the Population and
Family Planning Law of the People’s Republic of China (adopted 20 August 2021), amending Art. 18.
23
This statement of Leon C Megginson, a professor of management at Louisiana State University, is
a paraphrase of the core idea of Charles Darwin’s On the Origin of Species : Leon C Megginson,
‘Lessons from Europe for American Business’ (1963) 44 Southwestern Social Science Quarterly 3, 4
24
International Monetary Fund, Asia and Pacific Department, Japan: 2025 Article IV Consultation—
Press Release; Staff Report; and Statement by the Executive Director for Japan (IMF Country Report
No 25/82, 2025) < https://doi.org/10.5089/9798229006811.002 >.
25
Supra Note 2.
14
explosion”. The situation as it stands today gives cause for concern
regarding the ageing population and diminishing share of persons of a
working age. Javed relied on the National Population Policy, 2000, which
contemplated bringing the TFR from 3.0 down to replacement levels by
2010. Today, that target has not only been reached but surpassed, with
a TFR of 1.9.
30. The demographic and economic considerations which informed the
decision in Javed can no longer be presumed to retain the same validity
in contemporary circumstances. While population control and family
planning were regarded as legitimate means of addressing the economic
and social consequences of population growth, subsequent demographic
developments have substantially altered the underlying assumptions.
IV. Role of Constitutional Courts in adapting to change
31. The constitutional validity of the applicable provision of the
Maharashtra Village Panchayats Act has not been challenged before us
and, as such, we may not adjudicate directly upon its validity. This,
however, does not preclude us from observing that a law which was
considered reasonable and justified at the time of its enactment has, with
the passage of time and changes in social circumstances, lost its original
rationale and effectiveness. Its continued operation may consequently
15
warrant reconsideration, particularly where the circumstances and
26
objectives that once justified the law have materially changed.
32. Four aspects for achieving justice are well founded and articulated
as, i) distribution of advantages and disadvantages of society, ii) curbing
the abuse of power and liberty, iii) deciding disputes and, iv) adapting to
change. Adapting to change is important for achieving justice, as failure
to adapt produces injustice and is, in a sense, an abuse of power. Thus,
failure to use power to adapt to change is in its own way an abuse of
power. In fact, the issue is not one of whether to change or not to change,
but of the direction and the speed of change, and such a change may
come in various ways, and most effectively through legislation. Legal
reform through legislative correction improves the legal system, and it
would require assessment of the working of the law, its accessibility, utility
and abuse as well. The Executive branch has a constitutional duty to
ensure that the purpose and object of a statute is accomplished while
implementing it. It has the additional duty to closely monitor the working
of a statute and must have a continuous and real-time assessment of the
impact that the statute is having. As stated above, reviewing and
assessing the implementation of a statute is an integral part of Rule of
Law. The purpose of such review is to ensure that a law is working out in
26
Joseph Shine v. Union of India, (2019) 3 SCC 39; John Vallamattom v. Union of India, (2003) 6 SCC
611; Motor General Traders v. State of A.P., (1984) 1 SCC 222; Rattan Arya v. State of T.N., (1986)
3 SCC 385.
16
practice as it was intended. If not, to understand the reason and address
it quickly.
33. The necessity for law to respond to changing social circumstances
has long been recognised in jurisprudential thought. Roscoe Pound, in
his celebrated article Law in Books and Law in Action , distinguished
between law as formally expressed and law as it actually operates in
27
society. He stated:
“Law has always been and no doubt will always continue to
be, “in a process of becoming”…For the lawyer, the moral
of the difference between law in books and law in action is
not to be obsessed with the notion that the common law is
the beginning of wisdom and the eternal jural order. Let us
not be afraid of legislation ,and let us welcome new
principles, introduced by legislation, which express the spirit
of the time. Let us look the facts of human conduct in the
face. Let us look to economics and sociology and
philosophy, and cease to assume that jurisprudence is self-
sufficient. It is the work of lawyers to make the law in action
conform to the law in the books, not by futile thunderings
against popular lawlessness, nor eloquent exhortations to
obedience of the written law, but by making the law in the
books such that the law in action can conform to it, and
providing a speedy, cheap and efficient legal mode of
applying it… Let us not become legal monks. Let us not
allow our -legal texts to acquire sanctity and go the way of
all sacred writings. For the written word remains, but man
changes.”
34. Pound’s approach emphasised that legal rules must be examined
in light of their practical operation and consequences, rather than solely
by reference to their formal existence or original objectives. A law enacted
27
Roscoe Pound, ‘Law in Books and Law in Action’ (1910), 44 American Law Review 12–36.
17
to address a particular social problem may cease to serve its intended
purpose when the circumstances underlying it have materially changed.
A similar understanding was articulated by Oliver Wendell Holmes Jr. in
28
The Common Law , where he famously observed:
“The life of the law has not been logic: it has been
experience. The felt necessities of the time, the prevalent
moral and political theories, intuitions of public policy,
avowed or unconscious, even the prejudices which judges
share with their fellow-men, have had a good deal more to
do than the syllogism in determining the rules by which men
should be governed. The law embodies the story of a
nation's development through many centuries, and it cannot
be dealt with as if it contained only the axioms and
corollaries of a book of mathematics. In order to know what
it is, we must know what it has been, and what it tends to
become. We must alternately consult history and existing
theories of legislation. But the most difficult labor will be to
understand the combination of the two into new products at
every stage. The substance of the law at any given time
pretty nearly corresponds, so far as it goes, with what is then
understood to be convenient; but its form and machinery,
and the degree to which it is able to work out desired results,
depend very much upon its past.”
35. These observations recognise that law is shaped by the changing
needs, experiences and conditions of society rather than by abstract legal
reasoning; law cannot remain static in a changing society. Enacted to
address a particular social problem, law may cease to serve its intended
purpose when the circumstances underlying it have materially changed.
A rule which was justified in one period may require reconsideration when
the social or economic conditions that sustained it no longer exist. The
28
Oliver Wendell Holmes Jr, The Common Law (Little, Brown and Co 1881) 1.
18
continued relevance and justification of a law must, therefore, be
assessed in light of contemporary social realities rather than solely by
reference to the circumstances prevailing at the time of its enactment.
Evolution of law to keep up with changing realities is important. Ordinarily,
social change at the first instance finds expression through the legislative
process and when that does not happen at a time when it should, the
responsibility falls to the constitutional courts. This Court in Yash
29
Developers v. Harihar Krupa Co-operative Housing Society Ltd.
recognised the role of constitutional courts in facilitating statutory
performance audits, particularly where experience reveals deficiencies in
the operation of legislation.
36. This Court in Yash Developers observed:
“37. Constitutional courts are fully justified in giving such
directions as they are in a unique position of perceiving the
working of a statute while exercising judicial review, during
which they could identify the fault-lines in the
implementation of a statute. This extraordinary capacity to
assess the working of a statute is available to the judicial
institution because of its unique position where, i) disputes,
based on the statutory provisions unfold before it, ii) claims
of rights or allegations of dereliction of duties are raised with
varied, and sometimes, contradictory interpretations of the
same text of the statute, iii) submissions of lawyers opens
up a debate and as officers of the Court experienced
lawyers would lay bare the fault-lines in the statutory
scheme, iv) many a times court silently witnesses the play
of statutory power relegating the deserving to the backseat,
and the undeserving taking away all the benefits.
38. Laws that are made by Parliament or the legislative
assemblies create rights, entitlements, duties or liabilities.
29
2024 INSC 559, subsequently followed in Rutu Mihir Panchal v. Union of India, 2025 INSC 593.
19
Application of such empowerments or disabilities gives rise
to competing claims or conflicting interests. For resolution of
these disputes, constitutional courts provide public law
30
remedies where claims and contestations are decided by
High Courts on a case by case basis. Judicial review is
generally episodic, and is intended to resolve the lis on a
case-to-case basis. Though cases are decided on their own
merit and the lis disposed of, what is left behind is the
institutional memory of the Court about the working of the
statute and its interpretation preserved as precedents. Over
a period of time, a critical mass of adjudicatory
determinations on the working of the statute is built. This
critical mass, coupled with the experiences gained by the
Judges and the Court on the working of the statute, is of
immense value for auditing the working of the legislation. It
enables the court to assess whether the purpose and object
of the Act is being achieved or not.
39. The traditional perception of the constitutional role of writ
courts was confined to judicial review of executive and
legislative action. In that role, the courts were to decide the
vires of the legislative and executive actions based on
constitutional parameters. Not only have the tools of judicial
review been reinvented (the rise of the proportionality and
arbitrariness doctrines) but also the breadth of the judicial
power has substantially expanded to areas that were
hitherto forbidden (review of policy decisions, constitutional
amendments and continuing mandamus being prime
examples). However, even this expansive reading of judicial
review does not capture the essence of the judicial branch
in its entirety.”
37. While Yash Developers dealt with the role of constitutional courts
to examine the working of the statute and also direct implementation of
the statutory purpose and object, we are in a different situation in a case
like this, where the very foundation of the legislation has crumbled and
30
Judicial control of administrative action in our country, effective and the most prolific, has evolved
from its classical scrutiny of ultra vires exercise of power to a whole set of procedural and substantive
principles, such as legality, procedural propriety, reasonableness, legitimate expectation,
proportionality, transparency, legal certainty, accountability, level playing field, consultation or
participation, etc. These principles are now well entrenched in our judicial review processes and are
part of our administrative law. In fact, the bulk of judicial review proceedings initiated before the High
Courts examine whether the power exercised is within its bounds.
20
the purpose and object of the legislative measure has become
counterproductive. While this Court cannot direct the legislature to repeal
or amend a law, it can certainly examine whether the continued operation
of that law remains constitutionally sustainable in light of changed
circumstances. Where the social, economic or factual circumstances
underlying its justification have materially changed, this Court will
examine whether the law continues to subserve the legislative objective
and satisfies constitutional restraint.
38. A law which was rationally connected to a legitimate object at the
time of its enactment may, with the passage of time and a material
alteration in the circumstances which supplied its justification, cease to
bear that connection.
39. The doctrine of temporal reasonableness recognises that the
constitutional validity of legislation cannot always be determined
exclusively by reference to the circumstances prevailing at the time of its
31
enactment. In Malpe Vishwanath Acharya v. State of Maharashtra , this
Court recognised that “a statute which when enacted was justified may,
with the passage of time, become arbitrary and unreasonable.” The
principle received more definite constitutional expression in Satyawati
32
Sharma v. Union of India , wherein this Court held “legislation which may
31
(1998) 2 SCC 1.
32
(2008) 5 SCC 287.
21
be quite reasonable and rational at the time of its enactment may with the
lapse of time and/or due to change of circumstances become arbitrary,
unreasonable and violative of the doctrine of equality and even if the
validity of such legislation may have been upheld at a given point of time,
the Court may, in subsequent litigation, strike down the same if it is found
that the rationale of classification has become non-existent.” The
reasoning in Satyawati Sharma was subsequently reaffirmed by a three-
Judge Bench in State of Maharashtra v. Super Max International (P)
33
Ltd. These decisions establish that the doctrine of temporal
reasonableness continues to hold ground. What is constitutionally
significant is whether changing circumstances have undermined the
factual or legal foundation of the statutory classification.
40. The question, therefore, is not whether the law must remain static
or be permitted to change. Change is inherent in the life of the law. The
constitutional inquiry is whether the continued operation of a statutory
restriction remains capable of justification in the circumstances which
presently obtain. Adapting to change is important for achieving justice, as
failure to adapt produces injustice and is, in a sense, an abuse of power.
Thus, failure to use power to adapt to change is in its own way an abuse
of power.
33
(2009) 9 SCC 772; The Court in Vinod Kumar v. Ashok Kumar Gandhi (2019 INSC 860) held that
there is not “any good ground to refer” the judgment in Satyawati Sharma (Supra Note 32) “for
reconsideration by a larger Bench”.
22
41. In this regard, the concurring opinion of Justice H.R. Khanna in
Maganlal Chhaganlal (P) Ltd. v. Municipal Corporation of Greater
34
Bombay is particularly prescient. It was observed:
“22. …As in life so in law things are not static. Fresh vistas
and horizons may reveal themselves as a result of the
impact of new ideas and developments in different fields of
life. Law, if it has to satisfy human needs and to meet the
problems, of life, must adapt itself to cope with new
situations. Nobody is so gifted with foresight that he can
divine all possible human events in advance and prescribe
proper rules for each of them. There are, however, certain
verities which are of the essence of the rule of law and no
law can afford to do away with them. At the same time it has
to be recognized that there is a continuing process of the
growth of law and one can retard it only at the risk of
alienating law from life itself. There should not be much
hesitation to abandon an untenable position when the rule
to be discarded was in its origin the product of institutions or
conditions which have gained a new significance or
development with the progress of years. It sometimes
happens that the rule of law which grew up in remote
generations may in the fullness of experience be found to
serve another generation badly. The Court cannot allow
itself to be tied down by and become captive of a view which
in the light of the subsequent experience has been found to
be patently erroneous, manifestly unreasonable or to cause
hardship or to, result in plain iniquity or public
inconvenience. The Court has to keep the balance between
the need of certainty and continuity and the desirability of
growth and development of law. It can neither by judicial
pronouncements allow law to petrify into fossilised rigidity
nor can it allow revolutionary iconoclasm to sweep away
established principles. On the one hand the need is to
ensure that judicial inventiveness shall not be desiccated or
stunted, on the other it is essential to curb the temptation to
lay down new and novel principles in substitution of well
established principles in the ordinary run of cases and the
readiness to canonise the new principles too quickly before
their saintliness has been affirmed by the passage of time.
The votaries of the pragmatic idea that principles and rules
should be accommodated to ends must also take into
34
(1974) 2 SCC 402.
23
account the truth that of the ends to be achieved defineness
and order are themselves amongst the greatest and the
most obvious. The distinction between evolution of law
which is permissible by process of judicial pronouncements
and radical changes in law which can only be brought about
as a result of legislation cannot also be lost sight of…”
42. Justice Khanna’s observations recognise that while the law must
remain responsive to changing social circumstances, the means through
which legal change is effected must respect the constitutional allocation
of institutional responsibilities. Courts may develop legal principles and
examine the continuing constitutional validity of legislation, but
fundamental changes in legislative policy ordinarily remain within the
domain of the legislature. The necessity for legal adaptation must
therefore be reconciled with the limits of judicial power.
35
43. Subsequently, in Union of India v. Raghubir Singh, a Constitution
Bench of this Court recognised that the doctrine of binding precedent
must remain responsive to changing social circumstances and evolving
understandings of law. The Court observed:
“10. But like all principles evolved by man for the regulation
of the social order, the doctrine of binding precedent is
circumscribed in its governance by perceptible limitations,
limitations arising by reference to the need for re-adjustment
in a changing society, a re-adjustment of legal norms
demanded by a changed social context…
12. …It has also to be remembered, that many occasions
for new options arise by the mere fact that no generation
looks out on the world from quite the same vantage-point as
its predecessor, nor for that matter with the same
35
(1989) 2 SCC 754.
24
perception. A different vantage point or a different quality of
perception often reveals the need for choice-making where
formerly no alternatives, and no problems at all, were
perceived. The extensiveness of the areas for judicial
choice at a particular time is a function not only of the
accumulation of past decisions, not only of changes in the
environment, but also of new insights and perspectives both
on old problems and on the new problems thrown up by
changes entering the cultural and social heritage.”
44. Thus, where a statutory restriction is challenged upon constitutional
grounds, the Court cannot decline scrutiny merely because the provision
once answered the needs of an earlier age.
45. The earlier perception that population has a negative impact on
development does not hold water anymore. Rather than society and the
courts being concerned about the negative consequences of high
population, it should instead focus on the need to encourage a healthy
growth of population.
46. The constitutional validity of the decisions in Javed, or Rajbala , or
of the relevant provision of the Maharashtra Village Panchayats Act, is
not under challenge before us. But that does not stop this Court from
declaring that the underlying basis of these judgments no longer holds
ground.
47. The distinction between a judicial decision being erroneous when
delivered and subsequently losing its relevance because of changed
circumstances was also recognised in the dissenting opinion of Justice
25
36
S.B. Sinha in State of Punjab v. Devans Modern Breweries Ltd . It was
observed that “although a decision has neither been reversed nor
overruled, it may cease to be ‘law’ owing to changed conditions and
changed law”: cessante ratione cessat ipsa lex . Referring to Dias’
37
Jurisprudence , the Court distinguished between a decision
subsequently considered never to have represented the law and one
which was accepted as law when decided but whose rationale had
ceased to remain applicable because of altered circumstances. It was
emphasized:
“336. With changes that are bound to occur in an evolving
society, the judiciary must also keep abreast of these
changes in order that the law is considered to be good law.
This is extremely pertinent especially in the current era of
globalisation when the entire philosophy of society, on the
economic front, is undergoing vast changes.”
48. Thus, the discussion can be summarized as follows: Even though
a case has neither been reversed nor overruled it may cease to be “law”
owing to changed conditions and changed law. It is not easy to detect
when such situations occur. For as long as the traditional theory prevails
that judges never make law but only declare it, two situations need to be
carefully distinguished: one is where a case is rejected as being no longer
law on the ground that it is now thought never to have represented the
law; the other is where a case which is acknowledged to have been law
36
(2004) 11 SCC 26.
37
See Dias Jurisprudence, 5th Edition, page 146-147.
26
at the time has ceased to have that character owing to altered
38
circumstances. It is the latter that is relevant to the present lis . When
the nature of things changes, the rule of law must change.
V. Precedents discussing Javed
49. Not keeping the law abreast of changing times, has consequences
far beyond the specific precedent or law in question. While the provisions
analysed by this Court in Javed were repealed by an Amendment Act of
2006, the decision and the reasoning adopted in Javed subsequently
became an important precedent for sustaining further restrictions on
eligibility to contest elections to institutions of local self-government. The
reasoning adopted in Javed also influenced the judicial approach to the
Haryana Panchayati Raj (Amendment) Act, 2015, which introduced
additional disqualifications, including minimum educational qualifications,
outstanding dues to specified cooperative institutions, non-payment of
electricity dues and the absence of a functional toilet at the candidate's
residence.
(a) Javed followed by Rajbala v. State of Haryana
50. Similar provisions were upheld by this Court in Rajbala v. State of
39
Haryana , which expressly relied upon Javed while examining the
constitutional permissibility of prescribing qualifications and
38
Supra Note 37.
39
(2016) 2 SCC 445.
27
disqualifications for Panchayati Raj elections. Thus, the significance of
Javed extended beyond population control, as its reasoning subsequently
provided judicial support for restrictions on political participation based
upon educational and socio-economic conditions. The exclusionary
consequences of the restrictions upheld in Rajbala were severe. On the
basis of the educational data placed before it, this Court itself
acknowledged that the prescribed qualifications would render
approximately 68% of Scheduled Caste women and 41% of Scheduled
Caste men ineligible to contest Panchayati Raj elections. The National
Commission for Scheduled Castes subsequently recorded concerns that
such educational requirements had deprived substantial numbers of
Scheduled Caste persons, particularly women, of opportunities to contest
40
local elections.
51. The Constitution does not proceed upon the assumption that
wisdom, integrity, administrative ability, commitment to public welfare or
population control are the exclusive attributes of those who live in urban
areas (as held in Javed ) or those who are formally educated (as held in
41
Rajbala ).
40
National Commission for Scheduled Castes, Annual Report 2016–17 (Government of India 2016)
167–70, para 7.10.1.
< https://ncsc.nic.in/storage/annual_reports/pEd5Zf93pcQuZnW5H4PPgsmWEVbAPexxcg22W5l2.pd
f >; see also Anurag Bhaskar, ‘Damage to Democracy: Elitist Judgment of Supreme Court in Rajbala v
State of Haryana ’ (2016) 51(40) Economic and Political Weekly 47, 50.
41
Bhaskar, ‘Damage to Democracy’ (Supra Note 40) 50.
28
(b) Discontentment with Javed and Rajbala : Sukanya Shantha v.
Union of India
52. The constitutional understanding upon which decisions of this Court
in Javed and Rajbala rest has evolved over the past two decades. In
42
Sukanya Shantha v. Union of India , a three-Judge Bench of this Court
expressly questioned the reasoning in Rajbala , particularly its failure to
consider the disproportionate exclusion of Scheduled Castes from
contesting Panchayati Raj elections. It further recognised that the
exclusionary impact of the legislation upon Scheduled Castes raised
concerns of indirect discrimination. Although Sukanya Shantha did not
directly reconsider Javed or Rajbala , it demonstrates that the
constitutional framework for assessing such restrictions has evolved
beyond formal equality to encompass their discriminatory consequences
upon historically marginalised communities.
VI. Assessing the assumptions in Javed
53. The very rationale of linking population control with the right to
participate in elections deserves reconsideration. Even at the time of the
judgment, the reasoning employed in Javed was difficult to sustain in light
of the evolving jurisprudence relating to representative democracy,
political participation, adult franchise, education and reproductive
42
Sukanya Shantha v. Union of India, 2024 INSC 753 para 39.
29
choices, leading to decisions that exclude political participation on the
basis of a suspect classification becoming manifestly arbitrary.
(a) Impact of Javed on political rights of representation
54. While this Court upheld such restrictions in Javed , it is necessary
to examine their implications for women and individuals belonging to poor
and socio-economically marginalised communities. Political
representation, citizenship and substantive equality are well entrenched
in our constitutional philosophy. Dr Ambedkar described citizenship as a
“bundle of rights”, which included personal liberty, personal security,
equality before the law, freedom of conscience, freedom of expression,
the right of assembly, the right of representation in government and the
right to hold office under the State. He attached particular importance to
the last two rights, observing: “The right of representation and the right to
hold office under the State are the two most important rights that make
43
up citizenship.”
55. For Dr Ambedkar, citizenship was not confined to the formal
recognition of legal status but extended to the effective enjoyment of civil
and political rights. His understanding was informed by the historical
exclusion of the marginalised communities from institutions of social and
43
BR Ambedkar, ‘Evidence before the Southborough Committee on Franchise’ in Vasant Moon (ed),
Dr Babasaheb Ambedkar: Writings and Speeches , vol 1 (Education Department, Government of
Maharashtra 1979); Anurag Bhaskar, The Foresighted Ambedkar: Ideas That Shaped Indian
Constitutional Discourse (Penguin 2024) 44.
30
political power. The right to participate in the selection of representatives
would have limited significance if members of marginalised communities
were themselves denied effective opportunities to occupy positions of
political authority. Political representation was thus an essential means of
challenging entrenched social inequalities and securing the interests of
historically disadvantaged communities. Our first President, Dr. Rajendra
Prasad, while participating in the Constituent Assembly debates, opined
on the value of universal adult franchise:
“In my opinion, our people possess intelligence and
common sense. They also have a culture which the
sophisticated people of today many [sic] not appreciate, but
which is solid. They are not literate and do not possess the
mechanical skill of reading and writing. But, I have no doubt
in my mind that they are able to take measure of their own
interest and also of the interests of the country at large if
44
things are explained to them.”
56. Disqualifying individuals from contesting elections to Panchayati
Raj institutions on the ground that they have more than two children rests
upon the assumption that restricting access to elected office is an
appropriate instrument of population policy. Such an approach also risks
reinforcing the stereotype that persons seeking political representation at
the village level bear a particular responsibility for population growth. The
causes of higher fertility are far more complex and cannot be attributed
44
Constituent Assembly Debates, Vol XI, 26 November 1949, para. 11.166.35 (Dr. Rajendra Prasad).
31
to any particular class of persons merely because they seek to participate
in local self-government.
57. The origin of such laws across the country can be traced back to
the K. Karunakaran Committee Report, which recommended
disqualifying individuals with more than two children from contesting any
45
election, from the “ Panchayat to the Parliament ” . While several states
implemented this for the Panchayati Raj Institutions, no such law was
brought in at the central level.
58. There were some initial attempts at the outset, with the introduction
of the Constitution (Seventy Ninth Amendment) Bill, 1992 in the Rajya
Sabha. The Bill was considered by the Parliamentary Standing
Committee on Human Resource Development, after which it was
considered for consultation amongst the political parties, but no
consensus was reached. Eventually, a draft Cabinet Note was prepared
in 2007 for the withdrawal of the Bill. However, no decision was taken
46
regarding the Bill.
59. The imposition of such restrictive measures only on leaders at the
Panchayati Raj level is replete with prejudice and preconceived notions.
47
This Court in People’s Union for Civil Liberties v. Union of India put it
45
Arun Kumar Gupta, ‘Implementation of Two Child Norm in Panchayats and its Implications’ [2016]
77(1) The Indian Journal of Political Science 63-68 <https://www.jstor.org/stable/26575667>
46
Ministry of Health and Family Welfare, ‘Implementation Status of Two-Child Norm’ (Press
Information Bureau, 2 December 2014).
< https://www.pib.gov.in/newsite/PrintRelease.aspx?lang=2®=48&relid=112336&utm >.
47
(2003) 4 SCC 399.
32
rather pithily that “the sense of devotion to duty and the sense of concern
to the welfare of the people”, if there be any with regard to population
control, are “not the monopoly of well-educated persons”. It does not
bode well for a democracy with universal adult franchise to create such
top-down restrictions.
(b) Impact of Javed on rights of women
60. This Court in Javed dismissed the grave implications of such a
restriction for the rights of women, stating that both men and women
would stand equally disqualified. This does not sit in accordance with the
social realities of the country. It has been apparent that women would be
disproportionately impacted by such measures.
61. A 2009 study sponsored by the Ministry of Panchayati Raj,
Government of India, concerning the implementation of the norm in
Rajasthan, Madhya Pradesh and Gujarat noted that the application of a
two-child norm in a patriarchal social framework has tended to weaken
the position of women rather than empowering them as envisaged in the
73rd Constitutional Amendment. Since decisions concerning women and
their reproductive choices are often driven by their husbands, a woman
may suffer electoral disqualification on account of a reproductive decision
over which she has little or no control. Furthermore, there have been
documented instances of forced abortions, desertion of pregnant wives
33
and denial of paternity, all resorted to in an attempt to evade
48
disqualification.
62. The preference for male children provides an important illustration.
Demographic studies have demonstrated that son preference influences
reproductive decisions, including the desire to have additional children
49
until the birth of a son. These attitudes are not confined to poor, rural or
marginalised communities. Studies have identified son preference and
gender-biased sex selection across different socio-economic groups,
50
including educated and economically affluent households. Although
their prevalence and manifestations vary, these findings demonstrate that
reproductive decisions are influenced by wider gender inequalities rather
than the socio-economic circumstances of any single section of society.
Consequently, the social determinants of reproductive behaviour require
broader policy responses rather than assumptions that associate
particular sections of society with responsibility for population growth.
48
TM Dak, Application of Two Child Norm for Contesting or Holding Office in Panchayati Raj
Institutions in Fifth Scheduled Areas, States of Rajasthan, Madhya Pradesh and Gujarat: A Study of
its Impact on Women (Research Report for the Ministry of Panchayati Raj, Institute of Social
Development 2009).
< https://cdnbbsr.s3waas.gov.in/s316026d60ff9b54410b3435b403afd226/uploads/2023/02/20230222
25.pdf >.
49
United Nations Population Fund, State of World Population 2025: The Real Fertility Crisis—The
Pursuit of Reproductive Agency in a Changing World (UNFPA 2025) 92.
< https://www.unfpa.org/sites/default/files/pub-pdf/swp25-layout-en-v250609-web.pdf >.
50
PM Kulkarni, Sex Ratio at Birth in India: Recent Trends and Patterns (United Nations Population
Fund 2020) 43.
< https://india.unfpa.org/sites/default/files/pub-pdf/sex_ratio_at_birth_in_india_-_july.pdf >.
34
(c) Impact of Javed on reproductive autonomy
63. The right to make reproductive decisions is an integral facet of the
51
right to life and personal liberty under Article 21. In Suchita Srivastava v.
52
Chandigarh Administration, this Court recognised that the choice to bear
a child or to abstain from doing so falls within the ambit of Article 21. The
liberty to bear a child and the choice of family life are intrinsic to individual
53
dignity and privacy. The choice of whether, when, and how many
children to have is a decision of the most intimate and personal character,
which must ordinarily remain within the autonomous domain of the
individual, free from external coercion. This Court has observed in X v.
Principal Secretary, Health and Family Welfare Department, Government
54
of NCT of Delhi that the right of every woman to make reproductive
choices without undue interference from the State is central to human
dignity.
64. These constitutional guarantees would be rendered illusory if the
State were permitted to achieve indirectly, through the imposition of
adverse civil or political consequences, that which it cannot ordinarily
compel directly. Reproductive autonomy is not entirely immune from
51
Suchita Srivastava v. Chandigarh Administration, (2009) 9 SCC 1 para 22; X v. Principal Secretary,
Health and Family Welfare Department, Government of NCT of Delhi, (2023) 9 SCC 433 para 122;
K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1 paras 271, 298, 323, 650; Supriyo @ Supriya
Chakraborty v. Union of India, 2023 INSC 920 paras 27, 29, 171; X v. Principal Secretary, Health and
Family Welfare Department, 2022 SCC OnLine SC 905 paras 18 to 21.
52
Suchita Srivastava (2009) 9 SCC 1 para 22.
53
K.S. Puttaswamy (Supra Note 51).
54
(2023) 9 SCC 433 (Supra Note 51) para 116.
35
regulation, but any such restriction must be continuously tested for its
reasonableness. The pursuit of population control cannot, by itself, justify
coercive interference with the married couple’s decision to bear children.
The imposition of electoral disqualification upon the birth of a third child
places a person in the position of choosing between the exercise of their
reproductive autonomy and continued participation in democratic
governance.
VII. Conclusion
65. We have revisited the legality, propriety, as well as constitutional
morality of the statutory provision imposing certain drastic disabilities and
disqualifications for bearing more than two children. When this Court
upheld it in Javed , it was under an assumption that “population explosion”
is an “impediment” for “progress”. Today, after more than two decades
the very formulation of the policy, coupled with reasons for repelling its
challenge, have collapsed. Even if the law was legal and valid at the time
of its making, it has become invalid as the foundation on which it rested
has changed.
66. For the reasons stated above, we deem it appropriate to refer the
matter to a larger bench for reconsideration of the ratio laid down in Javed
v. State of Haryana . Registry is directed to place our judgment and order
36
before the Hon’ble Chief Justice of India to constitute an appropriate
bench.
67. While issuing notice in the present matter, we have stayed the
judgment and order passed by the High Court, thereby permitting the
appellant to continue in her elected position as Sarpanch of Kakoda Gram
Panchayat. The interim order shall continue until disposal of the Civil
Appeal.
68. We place on record the valuable assistance rendered by
Ms. Rukhmini Bobde, learned Amicus Curiae.
………………………………....J.
[ ]
PAMIDIGHANTAM SRI NARASIMHA
………………………………....J.
[ ALOK ARADHE ]
NEW DELHI;
NOVEMBER 04, 2026.
37